Moor v. Cary , 42 Me. 29 ( 1856 )

Tenney, J.

By the agreement entered into by the attorneys of the parties at the April term, 1854, of the Court, not only was it admitted, that George W. Stanley would testify that he made a thorough search among his papers for the written agreement marked “A,” and did not find it; but it is expressed to be the intention of the parties, that William E. Smith’s deposition should be received without legal objection founded upon any want of proof of the loss of the original paper referred to. It was evidently the design, that there should be no objection to the introduction of the proper secondary evidence of the contents of the paper, on account of any further proof of its loss, but other objections to its introduction were not waived. The deposition of Smith, not including the copy of the paper marked "A,” was properly admitted.

The deposition shows, that Smith compared the copy, which is marked “ A,” with the original, and found it to be correct, and that he is acquainted with the handwriting of the defendant. Bat it contains no statement whatever, that the name of “ Shepard Cary” upon the original is in his opinion genuine. The agreement provides, that the plaintiff may proceed in the trial, just as if Stanley was a witness and testified to his unsuccessful thorough search for the agreement among his papers. This certainly is not a consent to waive the requirement of proof of the execution of that paper.

The loss of a paper, purporting to be signed by a party to a suit, and the allowance of secondary evidence of its contents, do not dispense with the proof of the execution. If this could be done, the loss of a paper, the execution of which is denied, might be of great benefit to the party wishing to introduce evidence of its contents, by taking away an important branch of the defence, and possibly the only defence designed to be set up. This cannot be admitted, and the authorities forbid it. There being no other proof of the genuineness of the name of the defendant, which appeared upon the original, than that contained in Smith’s deposition, the copy was improperly allowed in evidence.

The agreement touching the paper purporting to be the receipt of the defendant in the treasurer’s office, is that the signature is admitted to be genuine, and that the papers produced at the former trial from the treasury and state departments, shall be admitted as legal proof of the facts which they sot forth. And the case finds, that the certificate of Samuel Cony, treasurer, was the same referred to, in the agreement aforesaid, read to the Court. The treasurer’s certificate contains a copy of the receipt, the signature of which is admitted, as a part thereof, and this copy was properly introduced as evidence.

Exceptions sustained, verdict set aside, and new trial granted.

Rice, J., concurred.